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2017 (1) TMI 1710 - HC - Benami PropertyPartition of suit property - benami owner of the property - whether in the light of the decree dated 21st August, 1969 declaring Col. Ram Prakash Sharma to be the real owner of the property and Shri Diwan Chand Sharma to be the benami owner of the property, the plaintiff can be said to have any cause of action to seek the relief of partition claiming the property to have belonged to Shri Diwan Chand Sharma till his demise? - HELD THAT - The plaintiff in the plaint admits that in accordance with the decree aforesaid the property was mutated from the name of Shri Diwan Chand Sharma to the name of Col. Ram Prakash Sharma and on the demise of Col. Ram Prakash Sharma in the name of his widow defendant no.1. Thus, since the decree dated 21st August, 1969, the property has been owned by Col. Ram Prakash Sharma and his widow, for 38 years, till the year 2007 when the plaintiff and defendants No. 4 to 9 for the first time challenged the same. The plaintiff seeks partition of the property as an heir of Shri Diwan Chand Sharma. However Shri Diwan Chand Sharma, for 47 years prior to the institution of this suit for partition was not the owner of the property - eedless to state that till the said decree is set aside, the plaintiff cannot have a cause of action for the relief claimed of partition - The question framed is answered by holding that the plaint does not disclose a cause of action for the relief claimed of partition till the plaintiff gets a decree for declaration as claimed. Whether the plaint discloses any cause of action for the plaintiff to seek the relief of declaration of the decree dated 21st August, 1969 as null and void? - HELD THAT - The plaintiff has not pleaded any right which Shri Diwan Chand Sharma or the father of the plaintiff exercised as owner of the property since then. The plaintiff and his father were not even in use and enjoyment of the property. The plaintiff also since the demise of his father in the year 1997 acted for the first time only in the year 2007 i.e. after ten years. It is deemed appropriate that titles in immoveable property settled for long should not be permitted to be disturbed on such specious grounds as are urged. The plaintiff, removed by two generations from Shri Diwan Chand Sharma, cannot be permitted to challenge the decree which Shri Diwan Chand Sharma suffered. The plaintiff has no cause of action to have the decree set aside on grounds of the same having been procured by exercising misrepresentation on Shri Diwan Chand Sharma or by exercising undue influence over him - the question framed is thus answered by holding that the plaint does not disclose a cause of action for the relief of setting aside of the decree dated 21st August, 1969. Whether the claim for declaration is within time? - HELD THAT - This suit has been filed on 21st October, 2016. The plaintiff seeks to invoke Section 14 of the Limitation Act for invocation thereof it is necessary for the plaintiff to show that the suit filed by the plaintiff in the year 2007 was instituted and prosecuted with due diligence and in good faith in a Court which from defect of jurisdiction or other cause of like nature to entertain it - It is provided in Order 23 Rule 2 CPC and has been held in NUTAN TYAGI VERSUS NIRMALA DABAS 2016 (7) TMI 1569 - DELHI HIGH COURT that a suit even if filed after withdrawing the earlier suit with liberty to sue afresh is a fresh suit for the purposes of limitation. The plaintiff while filing this suit was not even aware that he was required to invoke Section 14 of the Limitation Act and seems to have been under impression that because liberty had been granted, he could invoke the jurisdiction of this court and this suit would be in continuation of earlier suit. Application under Section 14 of Limitation Act has been filed only after attention being drawn thereto - the questions framed on the aspect of maintainability by holding that the suit claim, from the averments in the plaint and application, is barred by time. Suit dismissed.
Issues Involved:
1. Cause of action for partition. 2. Cause of action for declaration of decree as null and void. 3. Timeliness of the claim for declaration. Detailed Analysis: 1. Cause of Action for Partition: The plaintiff sought a decree for the partition of property no. A-132, Defence Colony, New Delhi, claiming it belonged to late Shri Diwan Chand Sharma who died intestate. The court examined whether the plaintiff had any cause of action for partition given the decree dated 21st August 1969, which declared Col. Ram Prakash Sharma as the real owner and Shri Diwan Chand Sharma as the benami owner. The court noted that since the decree, the property had been owned by Col. Ram Prakash Sharma and his widow for 38 years until 2007, when the plaintiff first challenged it. The court concluded that until the plaintiff obtained a decree for declaration, there was no cause of action for partition. 2. Cause of Action for Declaration of Decree as Null and Void: The plaintiff sought to set aside the 1969 decree, claiming it was obtained by misrepresentation and undue influence. The court reviewed the grounds for this claim, including allegations that the property was acquired with Shri Diwan Chand Sharma's funds and that the decree defrauded the Land & Development Office (L&DO). The court found no evidence to support these claims and noted that benami transactions were legal in 1969. The court also emphasized that the right to challenge the decree on such grounds belonged to the L&DO, which had not objected. The court held that the plaintiff had no cause of action to challenge the decree, especially given the presumption that the court had verified the legality of the compromise before passing the decree. 3. Timeliness of the Claim for Declaration: The court examined whether the plaintiff's claim for declaration was within the limitation period. The right to challenge the decree initially belonged to Shri Diwan Chand Sharma and later to his heir, Shri Keshwa Nand Sharma, neither of whom took any action. The plaintiff claimed the right accrued in 2007, but the suit was filed in 2016. The court noted that the plaintiff had not shown due diligence or good faith in prosecuting the earlier suit, which was withdrawn in 2016 after objections were raised in 2007. The court held that the suit was barred by time, as the plaintiff had not promptly acted upon the defects pointed out. Conclusion: The court dismissed the suit, finding no cause of action for partition or declaration and holding the claim as time-barred. The plaintiff was also ordered to pay costs of ?25,000 to defendants no.1 to 3.
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